Theft by railway servants or by strangers with the connivance and knowledge of the railway servants or by reason of wilful neglect of the railway servants can make the railway company liable for the loss of goods sent at owners risk under a risk-note.

Reilly, J.

1. In this case the Plaintiffs are a firm of cloth merchants trading at Tinnevelly. The Defendants are the South Indian Railway Company and the Bombay Baroda and Central India Railway Company. The suit is for damages for the loss of a bale of cloth sent to the Plaintiffs by an Ahmeda-bad firm of merchants. It is admitted that this bale was despatched from Ahmedabad on the 9th of May, 1920, addressed to the Plaintiffs, and was entrusted to the Bombay Baroda and Central India Railway Company at Ahmedabad for that purpose but was never delivered to the Plaintiffs. The District Munsif found that this bale was sent at owners risk under a railway receipt, Ex. B, which was endorsed by the Ahmedabad firm to the Plaintiffs, and that the Ahmedabad firm had executed a general risk-note, Ex. I, on 1st January, 1920, under which consignments sent by them by the railway were to be sent at owners risk. The terms of Ex. I are Whereas all consignments of goods or animals for which the Bombay Baroda and Central India Railway Administration quotes both owners risk or special reduced rates and railway risk or ordinary rates are (unless I shall have entered into a special contract in relation to any particular consignment) dispatched by me at my own risk and are charged for by the Bombay Baroda and Central India Railway Administration at special reduced or owners risk rates instead of at ordinary tariff or railway risk rate, I, the undersigned, in consideration of such consignments being charged for at the special reduced or owners risk rate do hereby agree and undertake to hold the Bombay Baroda and Central India Railway Administration and all other Railway Administrations working in connection therewith, etc. harmless and free from all responsibility for any loss, destruction or deterioration of, or damage to, all or any of such consignments from any cause whatever except for the loss of a complete consignment or one or more complete packages forming part of a consignment due either to the wilful neglect of the Railway Administration or to theft by or to the wilful neglect of its servants, transport agents or carriers employed: By them before, during and after transit, over the said Railway or other railway lines working in connection therewith or by any other transport agency or agencies employed by them respectively for carriage of the whole or any part of the said consignments, provided the term wilful neglect be not held to include fire, robbery from a running train or any unforeseen event or accident.

2. Exhibit I purports to be signed by one Mohanlal, who has been examined as D.W. 5, for the Ahmedabad firm. The District Munsif found that the bale was consigned under the terms of the risk-note, Ex. I, and that the Plaintiffs had not proved any wilful neglect on the part of the railway administration or its servants, and so he dismissed the suit. On appeal the Subordinate Judge called for findings on two points:

(1) Whether the bale of goods in respect of which the Bombay Baroda and Central India Railway Company gave receipt, Exhibit B, to Subodh Chandra Bhopatlal Shah (the name of the Ahmedabad Firm) was received by the said company subject to the conditions of the risk-note, Exhibit I," and " (2) whether Mohanlal, the person by whom the risk-note, Exhibit I, purports to have been executed, had lawful authority from Subodh Chandra Bhopatlal Shah, the consignor, so to execute the document.

3. The District Munsif returned affirmative findings on both those issues, but the Subordinate Judge differed from him and found in the negative on each of them, and eventually made a decree for the Plaintiff for Rs. 600, the value of the bale and interest. The Defendants came on second appeal to this Court. That appeal was heard by Devadoss, J. He found that Mohanlal did sign Ex. I, which is not disputed, and he accepted the Subordinate Judges finding that Mohanlal had no authority from the Ahmedabad firm to sign that document. He also foun